In re Gabriel

• Decision Date: 20 August 2020
• Docket Number: No. 1-19-1840,1-19-1840
• Parties: IN RE MARRIAGE OF Michelle GABRIEL, Petitioner-Appellee, and Hassamo SHAMOUN, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 191840

159 N.E.3d 538

442 Ill.Dec. 359

IN RE MARRIAGE OF Michelle GABRIEL, Petitioner-Appellee,

and

Hassamo SHAMOUN, Respondent-Appellant.

No. 1-19-1840

Appellate Court of Illinois, First District, Fourth Division .

Opinion filed August 20, 2020

Alexander Michael, of Michael D. Ettinger & Associates, of Palos Heights, for appellant.

David C. Adams and Laura M. Presto, of Grund & Leavitt, P.C., of Highland Park, for appellee.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 Respondent Hassamo Shamoun (Sam) appeals from an order of the circuit court awarding petitioner Michelle Gabriel interim attorney fees in connection with Sam's earlier appeal of the circuit court's judgment dissolving the parties' marriage. For the following reasons, we dismiss the appeal for lack of jurisdiction.¹

¶ 2 I. BACKGROUND

¶ 3 In November 2018, the circuit court entered a final judgment dissolving Michelle and Sam's marriage. Among other things, the judgment awarded Michelle maintenance of $1402.42 per month for 24.3 months, ordered Sam to pay child support of $1500 per month (an upward deviation from the statutory guidelines), and ordered Sam to contribute $15,000 to Michelle's attorney fees. Sam appealed.

¶ 4 On March 31, 2020, we issued an opinion affirming the judgment in part and reversing in part. In re Marriage of Gabriel , 2020 IL App (1st) 182710, 441 Ill.Dec. 635, 157 N.E.3d 992. As relevant here, we held that the circuit court erred in calculating Sam's presumptive child support obligation under the guidelines by failing to adjust the parties' respective net incomes to account for the amount of maintenance that Sam was ordered to pay Michelle. Id. ¶¶ 57-58. While we concluded that the circuit court did not abuse its discretion in determining that an upward deviation from the guidelines was warranted ( id. ¶¶ 60-65 ), we nevertheless reversed the child support award because it was unclear whether the court's decision to deviate from the guidelines (and the extent of the deviation) was influenced by the court's miscalculation of the parties' respective net incomes ( id. ¶ 66 ). We instructed the circuit court on remand to recalculate Sam's guideline child support obligation and reconsider whether a deviation from the guideline amount is warranted.

¶ 5 In June 2019, while the prior appeal was pending, Michelle filed a petition in the circuit court for interim attorney fees related to the appeal. In the petition, Michelle asserted that defending the appeal would require her attorneys, David C. Adams and Laura M. Presto, to spend "substantial time" reviewing Sam's opening brief and the record on appeal, researching and drafting her response brief, reviewing Sam's reply brief, and preparing for and presenting oral argument, if necessary. Michelle asserted that, based on their experience, Presto was entitled to charge $400 per hour for office time and $450 per hour for court time, and Adams was entitled to charge $500 per hour for office time and $550 per hour for court time. Without providing an estimate of the number of hours of office time or court time that either attorney expected to expend on the appeal, Michelle requested an award of $25,000 in prospective attorney fees for the appeal. She asserted that Sam had the financial resources to pay such fees while she did not. In support of that argument, Michelle alleged (among other things) that Sam had failed to make his required maintenance and child support payments.

¶ 6 In response, Sam alleged that he was complying with his maintenance and child support obligations and argued that those payments significantly reduced any disparity in the parties' respective resources.

In addition, repeating an argument raised in his then-pending appeal, Sam claimed that the circuit court had overstated his income and that, based on his actual income, he lacked the ability to pay Michelle's attorney fees.² Finally, Sam argued that Michelle's request for $25,000 in attorney fees was unreasonable in light of the "relatively straightforward" nature of the appeal, the limited appellate record, and the fact that Michelle's appellate attorneys had represented her at trial and were thus familiar with the case.

¶ 7 On August 19, 2019, after a hearing, the circuit court granted Michelle's petition for $25,000 in interim attorney fees related to the then-pending appeal. The court found that the amount of fees requested by Michelle was reasonable. In addition, after reviewing the parties' financial affidavits and supporting documents, including Sam's bank statements, the court found that Sam had the ability to pay Michelle's attorney fees and that Michelle did not. In particular, the court found Sam's assertion that he lacked the ability to pay the fees "totally disingenuous." The court also rejected Sam's contention that his maintenance and child support obligations equalized the parties' respective resources, finding that Sam "[had] not been paying the maintenance and child support despite having the funds available" to do so. On September 11, 2019, Sam filed a notice of appeal.

¶ 8 II. ANALYSIS

¶ 9 On appeal, Sam contends that the circuit court abused its discretion in awarding Michelle $25,000 in interim attorney fees to defend against his prior appeal of the circuit court's dissolution judgment. Before we may consider the merits of Sam's appeal, however, we must assess whether we have appellate jurisdiction. Michelle argues that we lack jurisdiction because the circuit court's order awarding interim attorney fees is not a final and appealable order. We agree.

¶ 10 Under the Illinois Marriage and Dissolution of Marriage Act (Act), "[t]he court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party's costs and attorney's fees." 750 ILCS 5/508(a) (West 2018). This provision allows the court to award interim attorney fees during the pendency of the proceedings and make a final award of attorney fees once the proceedings have concluded. See id. As relevant here, such fees may be awarded in connection with "[t]he defense of an appeal of any order or judgment under this Act." 750 ILCS 5/508(a)(3) (West 2018).

¶ 11 Interim attorney fees are those that are "assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees * * * either already incurred or to be incurred." 750 ILCS 5/501(c-1) (West 2018). The purpose of awarding interim attorney fees is "to level the playing field by equalizing the parties['] litigation resources where it is shown that one party can pay and the other party cannot." In re Marriage of Beyer , 324 Ill. App. 3d 305, 315, 257 Ill.Dec. 406, 753 N.E.2d 1032 (2001). An award of interim attorney fees is made "without prejudice to any final allocation [of attorney fees] and without prejudice as to any claim or right of either party or any counsel of record at the time of the award." 750 ILCS 5/501(c-1)(2) (West 2018). "Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under [section 503(j)] or a hearing on counsel's fees under [ section 508(c) ]." Id. "Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs * * *." Id.

¶ 12 As these provisions make clear, an award of interim attorney fees "is strictly temporary in nature" and "subject to adjustment (including, if necessary, the disgorgement of overpayments to an attorney) at the close of the dissolution proceeding." In re Marriage of Arjmand , 2017 IL App (2d) 160631, ¶ 20, 412 Ill.Dec. 217, 74 N.E.3d 1140. For that reason, the appellate court has consistently recognized that orders awarding interim attorney fees are not final and appealable. See id. ¶ 21 ("the interlocutory appeal of interim-attorney-fee awards is not permitted by any supreme court rule"); In re Marriage of Radzik , 2011 IL App (2d) 100374, ¶ 45, 353 Ill.Dec. 124, 955 N.E.2d 591 ("a court order awarding interim attorney fees under section 501(c-1) of the Act is not an appealable interlocutory order"); In re Marriage of Johnson , 351 Ill. App. 3d 88, 96, 285 Ill.Dec. 841, 812 N.E.2d 661 (2004) ("interim awards are treated as interlocutory orders and are not subject to appeal"); In re Marriage of Tetzlaff , 304 Ill. App. 3d 1030, 1031, 238 Ill.Dec. 243, 711 N.E.2d 346 (1999) ("court orders awarding interim attorney fees pursuant to section 501(c-1) of the Act are not subject to interlocutory appeal").

¶ 13 Sam argues that these cases are distinguishable because they involved interim attorney fee awards made in prejudgment proceedings, whereas the fee award here was made after judgment had been entered, in connection with an appeal of the judgment. But section 508(a) provides that "[i]nterim attorney's fees * * * may be awarded * * * in a pre-judgment dissolution proceeding in accordance with [ section 501(c-1) ] and in any other proceeding under this subsection ." (Emphasis added.) 750 ILCS 5/508(a) (West 2018). The proceedings in which attorney fees may be awarded under that subsection include "[t]he defense of an appeal of any order or judgment under this Act." 750 ILCS 5/508(a)(3) (West 2018). In light of the plain language of section 508(a) and its express reference to section 501(c-1), this court has previously held that section 501(c-1) likewise applies in both prejudgment and postjudgment proceedings under the Act. See Beyer , 324 Ill. App. 3d at 314, 257 Ill.Dec. 406, 753 N.E.2d 1032 ("Under a plain reading of the statute, we conclude the legislature intended section 501(c-1) to apply in post decree proceedings."); In re Marriage of Oleksy , 337 Ill. App. 3d 946, 950, 272 Ill.Dec. 497, 787 N.E.2d 312 (2003) (" Section 501(c-1) applies to both...